Pirates and fraternities, Colorado and the high seas

2015 Venney MarilynBy Marilyn Venney

Telling people that I’m spending the summer in Boulder, Colorado while interning at an organization that works to combat piracy usually elicits some surprise. I’ve become used to questions like “Oh, you mean online piracy?” or “…in Colorado?”. And it has been strange in some ways. Boulder is absolutely beautiful, and has a reputation for being a city full of outdoorsy, active hippies. It’s also a place where college students drive shiny new Range Rovers and spend their summers playing beer pong on the lawns of their frats. It’s a place where it took me three weeks to find a store that sold cucumbers for less than 4 dollars apiece. Where, as of the 2011 census, 88 percent of the population were white and only 0.9 percent were black or African American. This is the backdrop for my evenings and weekends here.

My weekdays, on the other hand, are spent in an office full of people who are very passionate about and committed to various development issues. One Earth Future operates with the ultimate mission of preventing armed conflict and promoting peace through better, more effective government. Of the number of different projects within OEF, this summer I’m working with Oceans Beyond Piracy. Despite my background being in international development, before this summer my familiarity with piracy issues was basic at best. That changed quickly though, as I was thrown into the frenzy leading up to the release of OBP’s annual report assessing the economic and human costs of piracy. Everyone in the office was coming in early and leaving late, doing everything they could to make sure the messages were clear and the numbers were adding up. They have good reason to be so diligent: OBP is only a few years old, but in that short time it has become a respected authority on piracy issues. Its State of Piracy reports gather a great deal of attention each year and have solidified the role of OBP as a crucial actor in the maritime community’s efforts to combat piracy.

I work in the West Africa section of OBP, which means that I spend a lot of time sifting through legislation from West African countries, translating them, and pulling out provisions that are relevant to our work. The nature of piracy in West Africa is fundamentally different from that off the coast of Somalia, and therefore requires different solutions. Ships travelling off the coast of Somalia are usually only passing through, and have little reason to stop in Somali ports. As they never enter Somalia’s territorial waters, they are never subject to Somali law. Ships travelling off the coast of West and Central Africa, on the other hand, make frequent stops in ports and must regularly enter territorial waters. As a result, the responses to piracy that have been so effective in Somalia — the use of armed guards has been a key deterrent to pirate activity off the Horn of Africa — are unworkable in West Africa where ships cannot legally bring teams of armed security guards into a state’s territorial waters. Similarly, the prosecution of Somali pirates was delegated to other states in the region, since, as a failed state, Somalia had little capacity or desire to prosecute. West African countries, however, have a more important role in arresting and prosecuting pirates. The problem is that, as far as OBP can tell, there have been no prosecution of pirates in West Africa.

These challenges are the bases for the two projects that I’ve been working on lately. First, I’ve been helping to locate and analyze any legislation relating to a state’s ability to prosecute pirates, either for the crime of piracy or for some other crime, like armed robbery, assault or murder. Second, I’ve been researching private security legislation as part of an effort to help shipping companies and private security companies understand what the actual policies of each West African state are with regard to whether ships can use armed guards.

So that’s how I spend my weekdays: immersed in the legislation of West African countries and discussing the enormous impacts of piracy on seafarers in West Africa. And then I go home, where I spend my evenings and weekends in beautiful Boulder, hiking, camping, and watching a real-life frat movie unfold across the street from my house. It’s weird.

Human Rights Protection & The Game of Thrones

2012 Laura Rhodes 100x150 bLaura Rhodes

One of the cultural differences I notice, is that when Americans speak about whether Obama should intervene militarily in Syria, there is a certain heft to their consideration. As a Canadian, my impulse is toward diplomatic solutions, perhaps reflective of my status as a citizen of a middle power and realistic in terms of the action I might expect of my government. It also leaves me with less responsibility for the tough decisions. After all, Canada would only ever be a member of the “coalition of the willing”, not the spearhead. Does the relative effectiveness of our national strategies to enact global political change impact the depth and tenor of our respective cultural dialogues and moral deliberations ?

 

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At the Canada Day party thrown by our American colleagues

 

We sat down to discuss different options in Syria as part of our reading club. Syria is starting to be seen by some as as a failure of the Responsibility to Protect (RtoP) resolve to intervene to protect civilians from war crimes, crimes against humanity, ethnic cleansing and genocide (Stewart M Patrick, online: <http://www.theatlantic.com/international/archive/2013/06/does-syria-mean-the-end-of-the-responsibility-to-protect/276866>). As recently as 2011, RtoP was invoked by the Security Council to authorize “all necessary measures to protect civilians” from widespread and systematic attacks by the Qadhafi regime in Libya.

Our group agreed at least on the minimization of Syrian civilian deaths as a moral good. Yet, we totally disagreed on the strategies, and I noticed my naïveté and discomfort with the language of geopolitics. Over the course of an hour, an initial position advocating for intervention in support of the Free Syrian Army’s just cause had been substantially counter-weighted with an empirical argument in support of al-Assad as the most likely candidate to end the conflict first, thus minimizing the number of deaths. The consensus in the room had started to converge toward the option of the US doing nothing, although really no conclusion had been reached. Of course, we all seemed to agree that everything that could be done from a humanitarian perspective should be immediately deployed, just short of intervening in the civil war. When asked for our Canadian perspectives, I said something about Canada as a peace broker to resolve the larger political tensions in Syria, convening Russia and the US, the new Iranian president and the Saudi Arabian leadership.

 

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Mass Protest in Syria

It was a deeply uncomfortable human rights conversation in a conference room in Broomfield, CO, about the lives of people in Aleppo, Homs, Qusair, Khalidiya and other Syrian communities. The vision of the One Earth Future Foundation, “an Earth beyond war”, started to seem remote, as did the the RtoP principle of “respond(ing) to situations of compelling human need” (ICISS, “The Responsibility to Protect: Core Principles”).

Overall, looking forward to resolving some of the ambiguity I feel, and perhaps accessing better tools for deliberation in human rights, especially for discussion of the jus cogens crimes / human rights violations covered under RtoP.

And, appreciative of the opportunity to have my deeply Canadian peace-keeping assumptions thrown into sharp (geopolitical) relief.

Difficulties of Somali Remittance Companies – Explained with Animation

2013 Jim Burman 100x150Over the summer, most major banks in the United Kingdom began closing the accounts of the small companies which Somali migrants use to send money home to their families.  The group I’m working with, Shuraako, put together an informational video which explains the situation.

I plan to write a longer post with a bit more background, including a review of the anti-money laundering/couter-terrorism finance laws which contribute to the reluctance of banks to service this sector, but I wanted to share the video while it is still fresh:

You can also read more about the situation on the Shuraako’s website:

http://shuraako.org/remittances-industry-analyses-and-news

 

Piracy, Universal Jurisdiction, and Domestic Law in the United States

Andrew Higdon, One Earth Future Foundation. Broomfield, Colorado, USA.

2013 Andrew Hidgon 100x150On November 7, 2008 the Bahamian flagged cargo ship CEC Future was attacked by Somali pirates on the high seas in the Gulf of Aden. The attackers, armed with AK-47s and rocket propelled grenades, fired shots and boarded the ship. The ship and her crew (eleven Russians, one Georgian and one Estonian) were released a month later when the Dutch ship owners paid a $1.7 million USD ransom. In order to negotiate with the outside world, the pirates employed Ali Muhammad Ali who acted as a facilitator and interpreter onboard the ship.  Ali made $16 500 USD from his cut of the ransom, and negotiated an additional $75 000 USD from the ship owners for coordinating the release – all without leaving Somali territorial waters for any significant length of time.

In addition to being a pirate negotiator, Ali also served as the Director General of the Ministry of Education of Somaliland – a fact that neatly conveys at the scale of the problems facing Somalia. US prosecutors used his position to lure him into the US by inviting him to a fake education conference in Raleigh, North Carolina. Upon arrival he was immediately arrested and charged under US piracy and hostage taking laws. How could the US claim jurisdiction over a non-national who committed a crime in another country against a ship sailed and owned by foreign nationals?

Under international law, states must have jurisdiction over the person and the offence in order to affect a legitimate prosecution. In the case of piracy, nations rely on customary international law and the UN Convention on the law of the Sea (UNCLOS 1982) to ground their jurisdiction. Unique among crimes, piracy has long been treated as an offense that any nation can prosecute. Unlike other theories of jurisdiction (such as “the territoriality principle” which gives states jurisdiction over events that take place within their territory,  or “the nationality principle” with gives states jurisdiction over actions committed by a their nationals) piracy is a crime that requires no nexus for a state to properly assert jurisdiction. Basically, any state that finds a pirate on the high seas can prosecute him. Traditionally, this unique jurisdictional aspect of piracy has been viewed as a consequence of the fact that pirates committed their crimes on the high seas, outside of anyone’s jurisdiction, and against the international community at large.

But Ali hadn’t operated on the high seas; he had helped facilitate piracy from Somali territory. The prosecutors charged Ali under 18 U.S.C. § 1651 – the US law that prohibits piracy – which states that individuals commit an offence where they commit piracy as defined by international law. This meant that the court had to examine the provisions of UNCLOS. Despite a long history of academics and law makers articulating the belief that piracy was something that could only occur on the high seas, the court took the opposite view. Brown J. ruled that since the sub article criminalizing the facilitation of piracy did not explicitly mention a high seas requirement (while other articles did) this indicated that no high seas requirement existed. While the position is defensible, it does suggest a challenge to the accepted order of jurisdiction.

It is highly unusual for a state to claim jurisdiction over the actions of a foreign national who committed a crime within the territory of his own nation, and where there is no other nexus with the prosecuting state. This is predicated on the understanding in international law that states will not interfere with the internal affairs of others. With this ruling, the US appears to be signalling its willingness to do so in certain situations. Perhaps the court decided as it did because of the fact that in Somalia there is little chance that men like Ali will ever see a courtroom. It seems unlikely that they would have decided the same way in a case that concerned a more developed nation. In any event, it illustrates the seriousness with which US prosecutors regard international crime and their comfort with dealing with it domestically. It is something that I think we should watch carefully.

A Chance For Change

2013 Jim Burman 100x150After more than two decades of war, there are glimmers of hope in Somalia.  Gains by UN-backed troops against the Al-Shabaab rebel group and the selection of a former human rights activist as the new president last year have created a sense that there may be a window of opportunity to move the country towards a more peaceful and prosperous future.
Since the nation’s dictator fell from power in 1991, the country has been without a central government.   In the vacuum that followed, fighting between warlords left vast swaths of the country’s people displaced and impoverished while a privileged few profited from the war economy.  With a semblance of security returning, it seems possible that a new order might begin to prevail and bring benefits to a widening circle of Somalis.
A key to any sustained recovery will be increasing opportunities for all Somalis to participate in the rebuilding of their country through paid employment.  Among those seeking to generate jobs and increase prosperity in Somalia is an organization based outside of Denver, Colorado, called Shuraako.  The group, whose name means partnerships in Somali, aims to boost employment-generating investments in the nation.
While the Somali people have shown remarkable economic resilience and ingenuity during the last two decades, there are significant challenges as the country seeks to re-integrate economically with the world.  The informal, often innovative, arrangements that have served the people during these times of turmoil may need to be modified if Somalia hopes to attract investment and increase trade.
Among its different activities, Shuraako hopes to serve as a resource for those seeking to navigate this transition towards international economic norms.  In support of this work, I have been researching land tenure practices in Somalia as well as international financial regulations and their impact on the country.   These first few weeks have been intellectually very engaging and I’ve enjoyed getting to know my cosmopolitan group of colleagues.  Overall, I hope my work this summer will contribute in some small way to helping Somalia seize this chance to head in a new direction.

Business’ Role in Atrocity Prevention

2012 Laura Rhodes 100x150The voracious appetite for minerals, fossil fuels of all description, and capacity for energy production continues to grow. The activities associated with extracting, harnessing, processing and transporting all of these valued resources can compromise other goods in society, such as essential resources like agricultural capacity, fisheries, water and forests.

In this already tense context, some researchers have shown that existing divisions within global society can widen due to increasing perceptions of resource scarcity. If tensions escalate, civil conflicts and war may occur.

 

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“I tell you, if man continues to destroy the earth, these winds will return with even more force … not once … but many times … sooner or later. These winds will destroy us all.

We all breathe one only air, we all drink one only water, we all live on one only earth. We must all protect it. 

Home invasions began again. Woodcutters and gold diggers do not respect the reserve. We do not have the means to protect this vast forest which we are guardians for all of you.”

— Chief Raoni on the hydroelectric dam on the Xingu River in Brasil

 

The One Earth Future Foundation (OEF) seeks to disrupt such inevitabilities. “Peace through Governance” is the byline on staff members’ email signature. In the first week of the internship, the Director of Research and Development of this fairly young non-profit organization sat us down to review and give feedback on OEF’s iteratively developing “internal logic framework”, which includes the organization’s belief that humans engage in cooperative behaviour because cooperation provides specific benefits at the individual or group level. OEF relies on game theory, as well as such recent books as Winning the War on War by Joshua S Goldstein and The Better Angels of Our Nature: Why Violence Has Declined by Steven Pinker to support this somewhat optimistic belief.

As a result of this inspiring organizational logic perhaps, the office is filled with colleagues lit up about the work we are doing together. Its a wonderful positive work environment and an ideal learning environment for human rights interns.

Digging further into the logic, OEF believes that violent conflicts arise in the absence of governance systems and is thus interested in the promotion of “good governance”, which is not synonymous with democracy per se but does include governance that is perceived as legitimate (Keohane, Robert (2000) “Governance in a Partially Globalized World” (Presidential Addess, American Political Science Association, 2000) and governance which protects a “thin list” of human rights including security, subsistence and liberty (Buchanan, Allen and Keohane, Robert (2006) “The Legitimacy of Global Governance Institutions” Ethics and International Affairs 20:4 at 405).

OEF remains somewhat agnostic about the UN and does not pursue global governance on all matters, just those truly global matters which affect a significant proportion of the world’s inhabitants. Indeed, regional multi-level working groups convened on an ad hoc basis, such as the Contact Group on Piracy off the Coast of Somalia (CGPCS), appear to be a better fit to achieve good governance of regional matters. Notably, the participation of  business entities in CGPCS, such as the Oil Companies International Marine Forum (OCIMF), Bimco, Intercargo, Intertanko and the International Chamber of Shipping, working alongside states on five CGPCS working groups, has been “indispensable” (Carl P Salicath, Senior Advisor, Norwegian Ministry of Foreign Affairs), allowing actors with well-defined interests in countering piracy to participate in largely de-politicized and pragmatic discussions (Danielle A Zach, D Conor Seyle and Jens Vestergaard Madsen, “Burden-sharing Multi-level Governance: The Case of the Contact Group on Piracy off the Coast of Somalia”). CGPCS appears to have achieved results, although the attribution is somewhat uncertain, but as of 2012, Somali pirate attacks dropped by almost 80 percent from a year earlier, with 851 seafarers fired upon in 2012, compared with 3,863 in 2011.

Overall, the role of business in achieving peace through governance is prominent at OEF. The founder of the organization is a very successful business entrepreneur who seeks to invest in a better world. He believes that his wealth is a blessing and that he, and other successful entrepreneurs, have a responsibility to do something positive with that wealth. It is easy to see how an organizational ethic placing business in a stewardship role could emerge at OEF.

It’s a bit of a paradigm shift for me, as the emphasis in most traditional human rights classes and conversations falls on the responsibility of states. We did spend one class on the responsibility of corporations in the context of human rights in Professor Mégret’s class last term, yet it was the last class and somewhat preempted by discussion of the upcoming exam. In addition, the disappointing new limitation on the availability of human rights claims under the Alien Tort Claims Act in the United States in the US Supreme Court’s recent judgment in Kiobel v Royal Dutch Petroleum appears to point away from corporate liability for human rights abuses.

Even so, my first task has been to comprehensively report on the potential for both criminal and civil corporate liability for either complicity or participation in the gravest of human rights abuses, including war crimes, genocide, ethnic cleansing and crimes against humanity. At the outset, this should be an easier link to draw, as these crimes are largely jus cogens and moral consensus is strong around their prevention. Further, my team in the Responsibility to Protect (RtoP) program is wrapping up its research phase, and moving on to implementation, which will likely involve making the “business case for atrocity prevention” (as strange a concept as that might appear to be) to business leaders, particularly in those resources industries which operate in so-called “conflict prone zones”.

Overall, I am using my background in sustainable development to bring what I see as the reality of climate change and declining resources to every conversation, and also relying on the organization’s optimism about human cooperation to buoy my perspective and maintain an open mind about what business leaders could possibly contribute to good governance and prevention of atrocities in areas where the race for resources is heating up and society is fractured by pre-existing (and manipulated) tensions over group difference. I understand that business is often well-placed with information and capabilities on the ground to “protect, respect and remedy” human rights (Ruggie Report on Business and Human Rights, 2010) and from my experience of working in Rwanda in 2010, I have also seen how people can be more willing to see themselves in the context of “we’re all Rwandans” if good work and career opportunities seem to be available to all through increasing national prosperity, driven by business investment.

Overall, Colorado is welcoming and warm. Luckily, I have remained out of the path of tornados and forest fires so far. Looking forward to the rest of the summer and future blog reflections. To all my colleagues across the globe, enjoy this learning opportunity and see you in the fall.

Oceans Beyond Piracy and the Somali Situation

2013 Andrew Hidgon 100x150Andrew Higdon, Oceans Beyond Piracy, Colorado USA.

Far from an 18th or 19th Century problem, maritime piracy continues to exact a humanitarian toll on seafarers and an economic toll on the global economy. While dangers exist in the vicinity of the Malacca Strait and the Gulf of Guinea, the waters near Somalia form the seas most well known for their pirates. Somali piracy has achieved greater notoriety than piracy elsewhere largely as a result of a massive spike in activity that began in 2008 – 2009. Several large vessels were taken hostage by pirates, and the world media began to pay attention.

Somalia is unfortunately an ideal environment for pirates. As a failed state, there is little law enforcement capacity or interest in establishing rule of law. Further, the crushing poverty in Somalia drives some to crime. Finally, Somalia is located by the Gulf of Aden, through which the vast majority of European trade with Asia passes. The confluence of factors makes a career as a pirate all too tempting for some Somali men. The problem began to escalate quickly. In 2011 more than 3,500 seafarers suffered attacks by pirates, and more than 500 were taken hostage.

Since it is difficult to acquire sophisticated equipment in Somalia, pirates use small boats with outboard motors to attack. Pirates attempt to manoeuver alongside “deep-sea” ships unnoticed and then scale ropes or ladders to get on deck. Once aboard, they seize the bridge of the ship, take the crew hostage, and re-route the ship to an anchorage near the shores of Somalia. Since these pirate anchorages lack the facilities to unload large ships, the pirates do not steal cargo. Instead, they ransom the ship and the seafarers back to the shipping company and owners. This attack-and-ransom profile is different from pirate attacks elsewhere in the world and puts additional stress on seafarers, who are often held for long periods of time while they wait to be ransomed. Some of these mariners do not survive, and some are very clearly tortured during their captivity. Since the crews of merchant ships are disproportionately chosen from the poorer nations of the world and are paid only modestly, it seems an additional affront that they must endure the greatest share of the burden.

Fortunately the international community has responded. Many countries sent naval forces to protect World Food Program vessels and merchant traffic. The Royal Canadian Navy continues to participate in Operation Ocean Shield, the NATO contribution. International organizations set up “sharing centres” where merchant ships could share their planned route and coordinate with available military assets.  Perhaps most significantly, sharing centres began to promulgate Best Management Practices (BMPs) to merchant ships to help teach mariners ways to decrease the likelihood of attack. Some of these practices are as simple as speeding up through High Risk Areas (HRAs). Pirates in small boats have a tremendously difficult time boarding fast moving targets. However, the shipping industry runs on razor thin profit margins, and increasing the speed of ships is inefficient and very costly. In 2012, shipping companies paid more than $1.5 billion in extra fuel costs associated with the faster speeds recommended in BMPs.

Thankfully, these measures have made a difference. It has been more than a year since a ship was reported to be successfully hijacked by pirates off the coast of Somalia. However, shipping companies continue to spend billions of dollars re-routing ships away from the HRA and buying additional fuel to achieve faster speeds. The international community also expends billions of dollars keeping a naval presence in the area. Another major expense is the placement of Private Military Security Company (PMSC) personnel aboard merchant ships. These armed guards used to be hired from among retired Special Forces personnel from Western militaries, but increasingly are being chosen from less reputable armed forces at more affordable rates. While PMSC personnel generate a very effective deterrent (no ship has been successfully hijacked off the coast of Somalia with PMSC personnel embarked) they potentially add a new facet to the problem. On the high seas, where criminal jurisdiction is hard to enforce, there is little to restrain a “shoot first, ask questions later” fire policy. Unfortunately, there are already cases where PMSC personnel appear to have misidentified fishermen with fatal consequences. These cases will prove to be exceptionally difficult to prosecute.

Oceans Beyond Piracy (OBP), where I am doing my internship, is part of a larger project called the One Earth Future Foundation (OEF). OBP pursues long-term solutions to the many issues surrounding piracy worldwide. In Somalia, this means bringing shareholders from industry, government and third parties together with sound research and analysis. So far I have been asked to conduct research on points of international law, especially questions about criminal jurisdiction at sea. The people who work here are knowledgeable and dedicated, and it’s been very exciting to work with them. I’m looking forward to the next few months immensely!

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